Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210312 DOCKET: C68310

Watt, Benotto and Jamal JJ.A.

BETWEEN

Gregory Haver and Juliana Sprott-Haver Applicants (Appellants)

and

Credit Valley Conservation Authority and Lorne Park Estates Association Respondents (Respondents)

Counsel: David E. Lederman, Julie Rosenthal and Larissa Fulop, for the appellants Paul DeMelo and Kristie Jennings, for the respondents

Heard: March 2, 2021 by video conference

On appeal from the judgment of Justice Jamie K. Trimble of the Superior Court of Justice, dated March 25, 2020, with reasons at 2020 ONSC 1841.

Reasons for Decision

Introduction

[1] A person builds a retaining wall on a neighbour’s property without a permit. The neighbour, on whose property the illegal wall was built, pleads guilty to a provincial offence and agrees with the Crown to jointly propose a sentence that would require the wall to be removed. Should the person who built the illegal wall on their neighbour’s property be allowed to intervene in the neighbour’s sentencing to argue that the wall should not be removed? That is the issue on this appeal.

Background

(a) The appellants build a retaining wall on the Association’s property without written permission contrary to the Conservation Authorities Act

[2] The appellants, Gregory Haver and Juliana Sprott-Haver, are homeowners in the Lorne Park Estates neighbourhood of Mississauga. In 2016, they built a retaining wall on the neighbouring property of the Lorne Park Estates Association (“Association”). The Association holds property in common for all residents of Lorne Park Estates.

[3] Because the retaining wall was built on property adjoining a wetland, its construction required written permission from the Credit Valley Conservation Authority (“Authority”) under the Conservation Authorities Act, R.S.O. 1990, c. C.27 (“Act”) and O. Reg. 160/06 (“Regulation”). The Authority was established under the Act with responsibility for the conservation, restoration, development, and management of natural resources within the Credit River Watershed, including where the wall was built.

[4] The appellants say they obtained permission to build the wall from the Association’s president but they did not obtain written permission from the Authority as required by the Act and Regulation.

(b) The Association pleads guilty to provincial offences

[5] In June 2019, the Association pleaded guilty before a justice of the peace to provincial offences of interfering with and developing a wetland by construction of a retaining wall without written permission from the Authority.

[6] When entering the Association’s guilty pleas, counsel for the Association accepted that the retaining wall had been built on its property without written permission from the Authority and was thus an “illegal encroachment”. He stated that the Association was pleading guilty because it had been charged with strict liability offences. He also said he understood that the Authority would seek a sentence requiring removal of the wall, which the Association also sought in civil proceedings.

(c) The justice of the peace dismisses the appellants’ application for leave to intervene in the Association’s sentencing

[7] Counsel for the appellants, who were present for the guilty pleas, then applied to intervene in the sentencing. They wished to argue that the wall should not be removed. The Authority and the Association opposed their application.

[8] Although the justice of the peace accepted that the court had jurisdiction and discretion to grant intervener status, she dismissed the appellants’ application for leave to intervene. In her view, the civil action underway was the more appropriate venue to deal with the appellants’ claim to keep the wall on the Association’s property.

[9] The justice of the peace then adopted the Authority’s and the Association’s joint position on sentence. She ordered the Association to rehabilitate the wetland by removing the wall and restoring the vegetation by September 18, 2020.

(d) The Superior Court dismisses the appellants’ application for certiorari

[10] The appellants applied for certiorari under s. 140 of the Provincial Offences Act, R.S.O. 1990, c. P.33 to quash the order dismissing their application to intervene in the sentencing. The application judge dismissed the application. He concluded the appellants had not met the “high bar” of establishing that a “substantial wrong or miscarriage of justice” had occurred under s. 141(4) of the Provincial Offences Act.

[11] The application judge ruled: (1) the appellants had no direct interest in the Association’s land on which the non-compliant structure was built and no expertise to offer the court on whether the wall should be left in place; they simply preferred to keep the wall on the Association’s land, even though both the Authority and the Association wanted the wall removed; (2) the appellants could have sought written permission from the Authority to build the wall or could have built it on their own land; (3) the appellants did not acquire a right to be heard in the Provincial Offences Court by building an illegal wall on the Association’s land; and (4) the appellants’ voice could be heard in a later proceeding when the Authority would decide whether to grant a permit to remove the wall.

Issues

[12] The appellants appeal to this court as of right under s. 140(3) of the Provincial Offences Act. They say they should have been allowed to intervene in the Association’s sentencing because: (1) their adjoining land would be affected by removal of the wall from the Association’s land; (2) there is no adequate alternative remedy to address their grievance that the court should not have ordered the wall removed without hearing from them; and (3) the application judge erred in describing the wall as an “illegal structure”, as the appellants say the Association gave them permission to build the wall even if the Authority did not.

Discussion

[13] Section 141(4) of the Provincial Offences Act provides that the Superior Court of Justice “shall not grant relief” in the nature of certiorari “unless the court finds that a substantial wrong or miscarriage of justice has occurred”. This court has directed that applications for certiorari under the Provincial Offences Act should be granted only rarely: R. v. 1353837 Ontario Inc., 2005 ONCA 4189, 74 O.R. (3d) 401 249 D.L.R. (4th) 720 (C.A.), at para. 18; York (Municipality) v. Irwin, 2017 ONCA 906, 68 M.P.L.R. (5th) 179, at para. 7.

[14] We do not accept that the application judge made any reviewable error in refusing certiorari. The application judge did not err in seeing no “substantial wrong or miscarriage of justice” in the justice of the peace’s discretionary decision to dismiss the appellants’ application for leave to intervene in the Association’s sentencing.

[15] Granting intervener status is discretionary. Intervention is granted sparingly in criminal and quasi-criminal cases, because it can be unfair to allow third parties to interpose themselves in what is ordinarily a binary lis between the Crown and an accused: see generally R. v. Morris, 2019 ONCA 509, at para. 3; R. v. Middleton, 2010 ONCA 610, at para. 6; R. v. Seaboyer, 1986 ONCA 7320, 50 C.R. (3d) 395 (Ont. C.A.), at p. 398; and R. v. MacKay, 2020 BCCA 258, 394 C.C.C. (3d) 331, at para. 20. It is unusual for a court to allow an intervention at a sentencing. Usually only the Crown and the accused can properly speak to the outcome of a case: R. v. J.L.A., 2009 ABCA 324, 464 A.R. 310, at para. 3.

[16] Here, the unfairness in allowing the appellants to intervene in the Association’s sentencing is obvious. The wall was undoubtedly illegal because it was built without written permission from the Authority contrary to the Act and Regulation. The Authority and the Association proposed a joint submission on sentence to require removal of the wall. The appellants wanted the court to reject that submission and to require the Association to keep an illegal wall on its land. It would have been unfair to require the Association to respond to that submission, when the Authority — which spoke for the public interest — sought the opposite.

[17] Even had the justice of the peace found that the appellants had a direct interest in the outcome of the sentencing by having built an illegal wall on the appellants’ land, she still would have been justified in refusing them leave to intervene. As the application judge found, the appellants had no expertise that would help the court make an informed decision on sentence, especially given the joint sentence proposal. We see no basis to disturb that conclusion.

[18] The application judge thus made no reviewable error in refusing certiorari.

Disposition

[19] The appeal is dismissed. The appellants shall pay the respondents costs of the appeal in the agreed amount of $20,000 all inclusive.

“David Watt J.A.”

“M.L. Benotto J.A.”

“M. Jamal J.A.”